People v. Kemp
| Decision Date | 19 December 1994 |
| Docket Number | No. A064320,A064320 |
| Citation | 30 Cal.App.4th 1627,36 Cal.Rptr.2d 730 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Previously published at 30 Cal.App.4th 1627, 35 Cal.App.4th 411, 39 Cal.App.4th 1692 30 Cal.App.4th 1627, 35 Cal.App.4th 411, 39 Cal.App.4th 1692 The PEOPLE, Plaintiff/Respondent, v. David Emerson KEMP, Defendant/Appellant. |
Oliver J. Northup, Jr., Davis, for appellant.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., Rene A. Chacn, Deputy Atty. Gen., San Francisco, for respondent People.
Appellant contends there was insufficient evidence to support the jury's conclusion that, for the purposes of the sentencing enhancement defined in Penal Code section 12022, subdivision (c), appellant was "personally armed with a firearm in the commission or attempted commission" of the offense of manufacturing methamphetamine (Health & Saf.Code, § 11379.6, subd. (a)). We conclude the jury's finding on this enhancement is supported by substantial evidence, and affirm.
We summarize those facts relevant to the challenged sentencing enhancement for the personal use of a firearm under Penal Code section 12022, subdivision (c) (section 12022(c)). 1
The police arrived at the residence of appellant's mother with a search warrant authorizing them to search the house and its outbuildings. The basis for the warrant was the fact that the premises was allegedly being used in the smuggling of methamphetamine into Pelican Bay State Prison. After the police arrived, appellant emerged from a small one-room shed, which was about 10 feet square. The evidence indicated appellant had been living in the shed; the shed contained clothing of his size, other items bearing his name, bedding, a desk, a chest of drawers, and fast food containers such as aluminum cans and pizza boxes.
The evidence seized inside the shed also indicated appellant was manufacturing methamphetamine. Inside the shed were a police scanner and numerous items used in drug manufacture, trafficking, or consumption, including glass vials filled with chemicals used in the manufacture of methamphetamine, a pH test kit, a small glass funnel, paper filters, a pipe used for smoking methamphetamine, ziplock plastic bags, diluting agents, and a marble bowl with a white powder residue. Chemical tests were conducted on some of the glassware, and the tests indicated the presence of methamphetamine and ephedrine, which is used in the manufacturing process. The evidence indicated the manufacturing process was ongoing, and had not yet reached the final or extraction stage of the procedure.
For present purposes, the most significant evidence seized from inside the shed was a loaded rifle. The rifle was in a camouflage gun bag, on the floor in plain view underneath a chest of drawers. If one were inside the small one-room shed, it would only take a few seconds to get to the loaded gun.
Appellant was charged with manufacturing methamphetamine, with being personally armed during the commission of that crime, and with other crimes not relevant here. After a jury trial, the jury returned verdicts finding appellant guilty of manufacturing methamphetamine, and of being personally armed in the commission of that offense. The trial court made a true finding on another charged sentencing enhancement, for a prior conviction which was affirmed by this court (Division Five) (People v. Kemp (Oct. 29, 1993) A058586 (A058586).)
The trial court imposed sentence as follows: Five years for the manufacturing of methamphetamine; three additional years for the prior conviction, and three additional years for being personally armed. The entire eleven-year sentence was to run concurrently with appellant's six-year sentence for his prior conviction of manufacturing methamphetamine and being personally armed on a previous occasion, which we had previously upheld in appeal No. A058586.
The sole issue raised on appeal is appellant's claim that the jury's true finding, on the enhancement for being personally armed in the commission of the offense, is not supported by substantial evidence; he does not contend the jury was improperly instructed, or that inadmissible evidence was adduced on this issue. We conclude substantial evidence does support the jury's verdict, and affirm.
Appellant relies primarily upon a recent decision from Division Three of this district, People v. Balbuena (1992) 11 Cal.App.4th 1136, 1138-1140, 14 Cal.Rptr.2d 640 (Balbuena), which reversed such an enhancement where the evidence showed (1) the defendant (convicted of possession of heroin and of cocaine for sale) had an unloaded gun located in a latched, but not locked, suitcase situate about 10 to 12 feet from him when arrested; and (2) the defendant did not seek to reach for his gun at the time of his arrest. Appellant, however, reads the language of Balbuena much too broadly. Properly interpreted, that case does not support appellant's argument, given the facts of record in this case, which differ in crucial respects from the facts in Balbuena.
Significantly, although no petition for review was filed in Balbuena, our Supreme Court has since been considering the limits of the "personally armed" enhancement, and has uniformly granted review in published cases which have either followed or rejected Balbuena. (See, e.g., People v. Bland (1993) 29 Cal.App.4th 1031, 1041, 18 Cal.Rptr.2d 339, review granted Jul. 15, 1993 (S032900) []; People v. Amador (1993) 25 Cal.App.4th 1446, 1449, 24 Cal.Rptr.2d 542, review granted Feb. 24, 1994 (S037089) []; People v. Chanthamany (1994) 27 Cal.App.4th 1201, 1206, 27 Cal.Rptr.2d 137, review granted May 12, 1994 (S038608) [].) Perhaps, someday, our Supreme Court may rule on the matter. We, however, cannot allow the issue to languish. Assuming arguendo that Balbuena states the applicable law, the case is inapposite here; in making such an assumption however, we do not adopt the legal conclusions Balbuena reached.
We disagree fundamentally with Balbuena's apparent conclusion that the mere placement of a gun in a receptacle (such as an unlocked suitcase) in the room where a defendant is engaging in criminal conduct, and where the defendant has obvious ready access to that receptacle and the weapon in it if he so chooses, negates a true finding of violation of section 12022(c) as a matter of law. Further, a defendant's election not to utilize the weapon to which he has ready access in the receptacle in which it rests when the police knock comes at the door has no more dispositive significance than does the fact the weapon is unloaded, as Balbuena also wrongly implies. (See Balbuena, supra, 11 Cal.App.4th at pp. 1139-1140, 14 Cal.Rptr.2d 640.)
Being "armed" includes having a firearm available for use. (People v. Wandick (1991) 227 Cal.App.3d 918, 927-928, 278 Cal.Rptr. 274 (Wandick).) CALJIC No. 17.16.1 (1993 rev.) charges the jury considering a section 12022(c) enhancement finding to determine if a defendant is "armed with a firearm" by having it "available for use." The variety of factual situations by which availability for use of a firearm by a defendant may or may not be established is infinite. This question of the firearm's availability for use is essentially one of fact, which should only rarely and under exceptional circumstances be taken from a jury, and certainly not where, as here, the firearm is in the same room where the defendant's criminal conduct is being committed. In Balbuena, it is doubtful whether these exceptional circumstances were present. They clearly are not in the case at bench.
A review of Balbuena, the authorities on which it relies, and those it does not cite is instructive.
The Balbuena court summarized the applicable law as follows: ' ' (11 Cal.App.4th at p. 1139, 14 Cal.Rptr.2d 640.)
The Balbuena court, purportedly applying this standard, reversed the true finding on the arming enhancement: (11 Cal.App.4th at p. 1139, 14 Cal.Rptr.2d 640, italics added.)
The Balbuena court suggested the purposes of the sentencing enhancement in discouraging the dangerous proclivities of drug dealers for arming themselves would not be served in such a case: "No additional danger was created by the presence of an unloaded gun in a closed suitcase across the room from defendant." (11 Cal.App.4th at p. 1140, 14 Cal.Rptr.2d 640.)
The Balbuena rationale, to the extent it is based on the weapon being unloaded and not "ready for use," is clearly irrelevant. Whether the weapon is loaded, unloaded, or inoperable is not the test by which violation of the arming enhancements of section 12022 is measured. ...
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People v. Kemp
...PEOPLE, Respondent, v. David Emerson KEMP, Appellant. No. S044603. Supreme Court of California. Nov. 22, 1995. Prior report: Cal.App., 36 Cal.Rptr.2d 730. Pursuant to rule 29.4(c), California Rules of Court, the above-entitled review is DISMISSED and cause is remanded to the Court of Appeal......